Seller's Market

  It appears that after several years of a dismal real estate market, that things are finally turning around. The "buyer's market" of the past several years seems to be breaking and turning into a bit of a "seller's market." Whether this is a true seller's market or simply a more normal market it hard to say, but overall it is a sign of good economic health.

  Some of the causes of the sluggish market seem to be fading away. For starters, foreclosures are down. These cheaper homes competed with others in the same neighborhood and drove prices down as the banks were anxious to dump their losses. The job market appears to be getting a bit stronger. Not that it is particularly good by historical standards, but it has been slowly improving.  And finally, people finally seem to have found a little confidence in the long-term prospects of the area. Home ownership is a major investment and it does have a way of anchoring one the area. After all, if some one wishes to leave Michigan for greener pastures elsewhere but can't take a bath on her house, she is effectively stuck here.

  On the other hand, the job market really is not great. And the jobs are not necessarily spread around each industry equally. For example, the legal job market is disastrous in West Michigan. And local government has laid off a lot of people and those jobs don't seem to be coming back. And because wages are still kind of low, prices on homes are not going to shoot up anytime soon. That is bad news for those whose house is underwater.

  Only time will tell how long this lasts.

Ryan Maesen
www.maesenlawfirm.com

Crime rates are down, but . . .

  Statistics have shown that crime is down on a national and statewide level. I suppose this is good. On the other hand, I have noticed an unfortunate side effect to lower crime rates: people who commit minor crimes or crimes where the evidence is not very strong may get charged. In a higher crime era, these types of crimes might simply not warrant precious police and prosecutorial resources. But when things are "slow" on the crime front, it seems that more people get charged with things that seem rather silly.

  For example, I have noticed that domestic violence charges seem to have gone up. Also, I have noticed a lot of criminal sexual conduct cases recently. With that one in particular, I know that the evidence in some of these cases is fairly weak. But, for whatever reason, the state is taking more chances charging these people and hoping they plea out. That is frightening for the defendant and his entire family.

   It is a very sad flipside to the coin of lower crime overall. Be careful out there.

Ryan Maesen
www.maesenlawfirm.com

The high cost of Being Cheap

  In West Michigan, many people pride themselves on their frugality. And being careful with one's money is often a good idea. Like all things, however, it can backfire. I have run into a number of people over the years that could have saved a small fortune if they had been willing to pay a professional upfront to help make sure potential problems were highlighted and dealt with before they became big problems.

  Below are some brief examples of the high cost of being cheap. I am not using actual names and will change the facts slightly to protect people's privacy.

  A couple cashes in their life savings to make a large down payment of a fixer upper home that they are buying on land contract. They decide that paying an attorney a few hundred dollars upfront to advise them on the deal is too much cost and bother. Two years later, they get behind in their payments and wind up losing the house. Now, their entire savings and anything they have put into the house are gone forever. They lost over $30,000 all because they believed that the money they paid on the contract was building equity for them. It was not. And they decided to forego the cost of the advice that would helped them understand this risk.

  A guy gets pulled over for a OWI. As he has never had one before, he is charged as a first time offender. Because the only evidence was his breathalyzer result, the entire case against him is based on those. He blew a .11 (the legal limit is .08). Because the officer did not observe him continuously for the required 15 minutes before administering the test, the guy could have had the results barred from being admitted from trial, meaning he likely would have had his case dismissed. Because he didn't want to pay $1200 for a good lawyer, he wound up pleading guilty. A couple of years later, he gets pulled over again. Now, he is a second time offender with a minimum mandatory jail sentence. The fines and other penalties are also increased. And if he gets a third OWI arrest, that charge is an automatic felony, and he is looking at prison time. If he had paid to keep his record clean the first time, he wouldn't be going to jail.

  The cost of serious representation for a serious felony is very expensive. Frankly, it is beyond the means of many criminal defendants. However, some who can come up with the money often just decide to let it ride with a court appointed attorney or a low cost attorney. The risk here is that the difference between the best representation and less than that can be years or decades in prison. There is no attorney that can guarantee a particular result, but if you are paying an attorney for a lot of his time, logically he is going to spend that time learning more about the nuisances of your cases. And those little details can be the difference between winning and losing; or at least a meaningful plea offer or one that doesn't offer much assistance.

  I know this blog may seem self-serving to some, but when life throws you major problems, you need to look at the long term cost. It is a big picture thing. A $5,000 retainer to a good lawyer is only $42 a month (rounded up) if he can save your 10 years in prison. Freedom is worth the price.

Ryan Maesen
www.maesenlawfirm.com


 

 

Court takes a long time

  It seems that nearly every client complains at how long the legal process can take. To those of us who deal regularly with the court system, the delays are just par for the course. But I do understand the frustration that people feel when they have a problem that urgently needs a solution and they have to wait weeks or months for a judge to make a decision. This is especially frustrating when the facts are not really in dispute and the solution is obvious. For example, a landlord looking to evict a tenant for not paying rent may have to wait a month or so for the process to navigate its way through the court system even though the tenant never disputes owing the money.

  Personal injury lawsuits or other forms of civil litigation can take a year or more. This is especially true when insurance is involved. The insurance company may wish to stall for time earning money on the amount they anticipate paying out. If the lawsuit is complex, it may takes several months for all the documents and other evidence to get into the lawyers hands and be analyzed.

  Criminal matters generally have a short time frame. Our Constitutional right to a speedy trial guarantees a person charges charged with a felony a trial within 180 days. Of course, there are ways for this to be extended lawfully. For example, if the defendant agrees to adjourn a particular hearing or if he/she agrees to take a court ordered competency exam.

  From an attorney's standpoint, delays can be frustrating. We would like to "close the file" and move on. Our time is limited and we want happy clients who can move on wit their lives. There is not much we can do to speed up the process. We do have an ethical obligation not to cause unnecessary delays but there is no bright line on when a delay becomes unethical.

  Sometimes we like to have things take a little time so we can fully investigate the law and the facts on our case and be more prepared when we do go to court. No attorney likes be thrown into a case at the last minute. Relying on incomplete facts because things are hurried is doing the client any favors.

  The best thing a client can do to help the process move along is to hire an attorney as early as possible on the case. After that, make sure you give him or her all the relevant information needed. That means disclosing bad facts. It is far better to hear them from you than from the other party's attorney. Bad facts can be dealt with. Missing information is like an unseen iceberg. And finally, be open to settling your case before trial. That is probably the best way to get a speedy resolution.

Ryan Maesen
Criminal lawyer, real estate lawyer in Grand Rapids, MI
www.maesenlawfirm.com

 

Get the facts first

  I often see these high profile cases in the media about a person accused of some crime. It frustrates me how both the media and the public immediately assume that a person is guilty just because they have been arrested and accused of something. We have a Constitution that requires a person be presumed innocent. Sadly, most people nowadays presume a person is a guilty until proven innocence.

  This is troubling for two reasons. First, a person can rarely prove he is innocent. Unless there is a good alibi defense or some other affirmative defense, often it comes down to one person's word against another. If a defendant tries to prove he is innocent, he is then taking on a burden of proof in the eyes of many jurors. The trial then becomes a credibility war; which few defendants can win. Many people charged with crimes are below average intelligence, scared to death, and are not able to articulate their case well enough to convince a skeptical jury.

  The second reason is that is makes jurors ineffective at doing their job. The whole concept of an unbiased jury that will decide based on the evidence goes out the window if people are pre-disposed to assume some one is guilty. The whole point of a trial is to ascertain the facts. A person whose mind if half made up can't do that. If the emotional pull of the charge, (criminal sexual conduct with a miner, murder, robbery etc) already puts a person in state of skepticism towards the defendant the case is already lost.

  People don't understand or appreciate how many people are in prison based on false accusations and juries that believed the lies in spite of the evidence. It is important that we all keep an open mind and remember that the government may someday come after you or a loved one. The Constitution will no longer seem like a worthless piece of paper at that point.

Ryan Maesen
Criminal Defense lawyer Grand Rapids, MI
www.maesenlawfirm.com

Some thoughts on the Constitution

  This will be a short thought on our Constitution and our Bill of Rights. Four of the first 10 Amendments to the Constitution deal exclusively with the rights of the criminally accused. Our Founding Fathers put alot of thought into the power of the state versus the power of the accused in a criminal matter. They understood that an average person could never match the resources of the government when it came to presenting a case. They also understood that a person cannot really prove he is innocent except in rare cases. For these reasons, they gave each of us some very basic protections that need to be strictly enforced. These include:

• The right to not testify or make a statement or testify.
• The right to an attorney (that the state needs to pay for it for the poor is not in the Constitution but came later via the Warren Court).
• The right to a trial of a jury of one's peers. This is important. These are our fellow citizens the state is going after.
• Protection from unreasonable searches and seizures. Without this, the police can just bust down your door and plant evidence at their whim.
• Cruel and unusual punishment. I would argue the death penalty and Driver Responsibility fees fall under this category as doe any "three strikes" law).

There are others but these form the foundation. Along with the state's burden on proving the case beyond a reasonable doubt, these are our basic protections against unfounded accusations. It doesn't matter if someone is guilty but rather that the state can meet its burden of proof.

I will right another blog on how I think Conservative jurors need to go back to high school to re learn these things.

Ryan Maesen, Criminal Lawyer Grand Rapids. www.maesenlawfirm.com

Criminal Sexual Conduct 1st and 3rd Degree

Criminal Sexual Conduct (CSC) in the 1^st and 3^rd Degree are felonies that require some form of penetration by the accused to the victim. The penetration requires some object be placed in the genital or anal opening of the victim. The object can be a part of the accused body or some foreign object. Criminal Sexual Conduct in the 1^st Degree is a felony that can result in life imprisonment. Criminal Sexual Conduct in the 3^rd Degree is punishable by a maximum 15 years in prison. The difference between the two are the “aggravating circumstances” present.

If a defendant has put a part of his or her body into the body of another, and one or more of the following is present, then the charge is CSC 1^st Degree:

(a) That other person is under 13 years of age.
(b) That other person is at least 13 but less than 16 years of age and any of the following:
(i) The actor is a member of the same household as the victim.
(ii) The actor is related to the victim by blood or affinity to the fourth degree.
(iii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.
(iv) The actor is a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled.
(v) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
(d) The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists:
(i) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physicallyhelpless.
(ii) The actor uses force or coercion to accomplish the sexual penetration. Force or coercion includes, but is not limited to, any of the circumstances listed in subdivision (f).
(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes, but is not limited to, any of the following circumstances:
(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.
(g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(h) That other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, and any of the following:
(i) The actor is related to the victim by blood or affinity to the fourth degree.
(ii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.

If the defendant has put a part of his or her body into the body of another, and one or more of the following:

(a) That other person is at least 13 years of age and under 16 years of age.
(b) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v).
(c) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
(d) That other person is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter. It is an affirmative defense to a prosecution under this subdivision that the other person was in a position of authority over the defendant and used this authority to coerce the defendant to violate this subdivision. The defendant has the burden of proving this defense by a preponderance of the evidence. This subdivision does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(e) That other person is at least 16 years of age but less than 18 years of age and a student at a public school or nonpublic school, and either of the following applies:
(i) The actor is a teacher, substitute teacher, or administrator of that public school, nonpublic school, school district, or intermediate school district. This subparagraph does not apply if the other person is emancipated or if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.
(f) That other person is at least 16 years old but less than 26 years of age and is receiving special education services, and either of the following applies:
(i) The actor is a teacher, substitute teacher, administrator, employee, or contractual service provider of the public school, nonpublic school, school district, or intermediate school district from which that other person receives the special education services. This subparagraph does not apply if both persons are lawfully married to each other at the time of the alleged violation.
(ii) The actor is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.

As you can see, most of these charges are related to sex with persons under 16 years old. Be careful and make sure you admit nothing if someone accuses you of one of these charges.

Ryan Maesen

Criminal Attorney, Grand Rapids, MI
www.maesenlawfirm.com